This Kansas City immigrant did everything right. Our broken courts might deport her

My client Ann was born in China and came to the United States as a student full of hopes and dreams. She earned her degree and fell in love with an American. In 2017, they married and today, the couple live happily in Kansas City, where Ann manages a local business. But there’s a catch, and it’s one that could upend their lives.

Ann (whose name I’ve changed to protect her privacy) believed adjusting her immigration status after marrying would be simple. In fact, her husband filed the paperwork himself after he drove to the local U.S. Citizenship and Immigration Services office and spoke to an immigration officer who told him what to do. Indeed, her case is one of the simplest I’ve seen over my decades of practicing immigration law. But what happened next shows just how broken our system is.

After filing all her paperwork, Ann needed to return to China for a family matter. The immigration officer had told her husband that she could leave and as soon as he received her advance parole document in the mail — the paper which allowed her to temporarily travel abroad and return to finish her process — and he could mail it to her in China. This was simply not correct. While Ann’s husband did exactly as the immigration officer instructed, when the couple appeared for their immigration interview after Ann’s return, they were told that since Ann had departed the U.S. without the document in hand, as a matter of law, her case would be deemed abandoned.

In an even more troubling move, instead of letting Ann just refile her applications and making a decision on them, USCIS placed her in deportation proceedings. The couple would now have to wait for an immigration judge to decide the outcome of Ann’s applications.

But the problem runs deeper. If our immigration policies worked as intended, Ann would have had her green card approved by USCIS rather than have to wait for years in the backlogged immigration court system — a backlog of 1.6 million immigration cases. Even before the pandemic shuttered government offices, green card hopefuls were waiting an average of five years for their cases to be heard.

Fortunately, there’s a simple solution to this problem — one that Congress can tackle now: Vote for new legislation to make our immigration courts independent. Currently, immigration courts are run by the Department of Justice. They are under the executive branch, and so they’re subject to both political whiplash and DOJ bureaucracy. Making the immigration courts their own body, like tax or bankruptcy courts, would allow them to be both impartial and efficient. Judges could control their own budgets, have autonomy over their dockets and be free from the political whims of whomever is in the Oval Office. All this would help clear up the backlog and restore solid judicial integrity.

Right now, courts must get DOJ approval if they want to make even small operational adjustments. They can’t hire staff in a pinch or rent temporary courtroom facilities. Here in Kansas City, our immigration court has been essentially hobbled since March 2020, because our judges don’t have the autonomy to offer virtual hearings. There were almost no cases heard during lockdown, and even now there remain very few hearings. To make matters even worse, if there is an unexpected COVID-19 scare, everything comes to a grinding halt.

Of course, pandemic court restrictions are still in place. While some precautions are warranted, others undermine due process. In some cases, clients must sit with their attorneys in a small room apart from the judge and the government’s attorney. This bifurcation of the parties allows judges to shield themselves from the human experiences of those they stand in judgment over. In other cases, a noncitizen’s attorney remains in the same courtroom with opposing counsel and the judge, while the client sits alone in a different courtroom. Unable to access their attorneys quickly and confidentially during the hearing, noncitizens are left to navigate the process without help — a position that seems totally contrary to the fundamental idea of representation.

In December 2021, our immigration system hit a milestone no one ever expected or wanted to achieve. The backlog of cases in our immigration courts hit an all-time peak of 1,596,193. Most people aren’t aware that this problem exists, but it impacts the lives of millions — our neighbors, employees, co-workers and friends.

Ann and her husband are now living in terrible limbo. Unable to move forward in their lives and unable to find a timely resolution, the couple is stuck — indefinitely. Each time Ann’s work authorization is set to expire, the family endures another round of anxiety associated with the potential of job loss, stress based on the continued uncertainty and frustration of knowing they had tried to do things “the right way.”

Sadly, cases like Ann’s are common. It’s why lawmakers have considered making immigration courts independent for years. And it’s why California U.S. Rep. Zoe Lofgren’s proposal is already supported by the American Bar Association, the American Immigration Lawyers Association, the Federal Bar Association and the National Association of Immigration Judges.

When even a case as simple, clean and straightforward as Ann’s can go sideways, you know it’s time for a change. In fact, it is long overdue.